IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140630

Docket: M092616

Registry:
Vancouver

Between:

Wayne Wilfred
Anderson

Plaintiff

And

Jacklyn Kozniuk

Defendant

Before:
The Honourable Madam Justice Sharma

Reasons for Judgment

Table of Contents

INTRODUCTION. 3

FACTS. 4

The Accident 5

Mr. Anderson’s condition immediately
after the Accident 7

At the Hospital 10

Mr. Anderson’s Recovery. 11

Mr. Anderson’s life before the
Accident 12

Mr. Anderson’s life after the
Accident 16

Findings of Fact 17

ANALYSIS. 17

1. Did Mr. Anderson suffer a mild
traumatic brain injury in the Accident?. 18

a.  Medical
opinion on Mr. Anderson’s MRI Brain Scans. 19

The Brain. 20

Mr. Anderson’s Brain Scans. 21

Conclusion – Brain Imaging. 22

b.  Medical
Assessments of Mr. Anderson’s Brain Functioning. 22

Neurological assessment 24

Psychiatric Evaluation. 26

Conclusion – Brain Functioning. 29

c.   Observed
Changes in Mr. Anderson’s Behaviour 33

His former employment 33

His current employment 35

Conclusion – Observed Behavioural
Changes. 36

Conclusion 1: Mr. Anderson did not
suffer a mild traumatic brain injury in the Accident 40

DAMAGES. 40

INTRODUCTION

[1]            
On the morning of January 9, 2008, the plaintiff Wayne Anderson was
crossing the street to catch a bus to work when he was struck by a vehicle
driven by the defendant Jacklyn Kozniuk (the “Accident”). In reasons delivered on
December 8, 2011, Madam Justice Russell found Mr. Anderson 30% liable for
his injuries because he failed to take sufficient care when crossing the
street: Anderson v. Kozniuk, 2011 BCSC 1678 (the “Liability Trial” or
“Liability Decision”).

[2]            
I must determine the extent of Mr. Anderson’s injuries from the Accident
and thus the appropriate damage award. There is no dispute that Mr. Anderson fractured
his clavicle (collar-bone) and the pubic rami (two small bones in the pelvis)
in the Accident and that those injuries disabled him for a period of time.

[3]            
What the parties’ dispute is: (a) whether Mr. Anderson sustained a mild traumatic
brain injury from the Accident, (b) if so, what impact that has had on him and
will have on his future, and (c) what, if any, damages he is entitled to as a
result because of all his injuries.

[4]            
Mr. Anderson claims he suffers from a mild traumatic brain injury caused
by the Accident. He says this injury has had a dramatically negative effect on
his life. His final submission encapsulates his position: “[Mr. Anderson] has
been left with an untreatable condition which has fundamentally altered his
functioning and identity as a human being”. Mr. Anderson claims damages for
pain from his fractures and loss of motivation from the brain injury. He claims
past and future wage loss, cost of future care, an in-trust claim (of his
parents) and the loss of capital.

[5]            
The defendant says that beyond the fractures, any problems Mr. Anderson
experiences are the result of pre-existing conditions unrelated to the Accident;
she says Mr. Anderson does not have a brain injury. She also says the injury to
Mr. Anderson’s left pubic rami has healed and any remaining pain is mild
and not disabling. She says his fractured clavicle has also healed and the
continuing discomfort could be alleviated if Mr. Anderson followed his
orthopaedic surgeon’s advice and removed the hook plate.

FACTS

[6]            
Only two factual issues about the Accident are disputed: (a) the precise
mechanics of Mr. Anderson’s injury, including whether he was “struck” by the defendant’s
car, and (b) Mr. Anderson’s state of awareness at the time of, and immediately
after the Accident. These two issues are important because some of the medical experts
base their opinions on a particular assumption about each issue. If that assumption
differs from the facts in this case, it may affect the weight I should place on
that particular expert’s opinion.

[7]            
Many witnesses who testified at the Liability Trial also testified
before me about the same events. The parties did not address what affect the
Liability Decision has on my findings of fact and ultimately my decision.

[8]            
Obviously, evidence was adduced at the Liability Trial for a different
purpose than it was before me. Nonetheless, the Liability Decision comments on facts
that arose in evidence before me. Some of those facts are more pertinent to the
issues in this trial than they were to the issues in the Liability Trial.

[9]            
I consider myself bound by those factual findings in the Liability
Decision that were critical to the legal conclusions on liability. For
instance, Russell J. found that Mr. Anderson probably drank “about 8 bottles of
beer every evening and he likely did so on the evening of January 8, 2008” (para.
26 of the Liability Decision), but there was “no evidence of actual impairment”
the morning of the Accident (para. 29 of the Liability Decision).

[10]        
Some other facts stated in the Liability Decision were not critical to
the conclusions on liability but are critical to the issue of damages. As such,
the parties adduced more extensive evidence and made further submissions before
me than they did before Russell J. If my factual findings differ from the
Liability Decision in any regard, that difference is attributable to that
particular fact’s greater relevance to the issues in this trial and, as a
result, the more extensive evidentiary record and related submissions available
to me to make that finding of fact.

The Accident

[11]        
The events that occurred immediately prior to the Accident on January 9,
2008, are described in the Liability Decision at paras. 6-15:

[6] Mr. Anderson walked down the lane behind his apartment
building to Llewellyn Street, turned left onto 5^th Avenue and
crossed 5^th from north to south. He waited on the southeast corner
of 12^th Street to cross it from east to west.

[7] Twelfth Street runs approximately north-south. Fifth
Avenue runs approximately east-west.

[8] By the time Mr. Anderson arrived at the corner, it was
approximately 7:05 a.m. It was still dark at that time in the morning. The
streets were wet, but it was not raining at the time. The cars he noticed had
their headlights on.

[9] Mr. Anderson was wearing a brown leather jacket, beige
pants, brown shoes and had no hat on. He was carrying a dark nylon briefcase
with a strap over his right shoulder and an umbrella in his left hand.

[10] At the intersection of 5^th Avenue and 12^th
Street, there is a marked crosswalk and an unmarked crosswalk. The marked
crosswalk is illuminated by a lit sign above the crossing and a street lamp. To
the south of that marked crosswalk, there is an unmarked crosswalk. The
unmarked crosswalk is not as well-illuminated as the marked crosswalk, but it
is lit by a street lamp on the southeast corner. Some illumination may also be
provided by the lit restaurant sign on the southeast corner of the
intersection, in front of which is the street lamp.

[11] Twelfth Street is a reasonably busy route in the
morning, busier going north, but still busy going south. Mr. Anderson believes
that one north-bound car stopped for him on 12^th Street. He looked to
his right and proceeded to cross.

[12] Mr. Anderson saw his bus a block away at 12^th
Street and 6^th Avenue. It was loading passengers. It is important
that he catch this bus to be on time. He is a punctual person, according to his
supervisor, Mr. Higgins. He usually arrives at work on time or a bit early,
unless he runs into a transit problem. Certainly, he has never been cautioned
about being late for work. However, seeing the passengers loading gave him some
assurance he did not have to run across the street to reach his bus stop, which
was located to his left and down 12^th Street.

. . .

[14] Mr. Anderson states that as he moved across the street,
when he looked up to his right and saw the bus, he also noticed a car some way
up the hill, which would also be to his right.

[15] Mr. Anderson described the
way he crossed the street: he crossed in front of the stopped northbound car
and then “cut the corner” and made an arc to his left to walk to the bus stop.
If he had made it to the curb, the greater part of his walk to the curb would
have occurred outside what could be considered the unmarked crosswalk.

[12]        
Mr. Kirkpatrick is the only person who witnessed the Accident (other
than the parties) that testified before me. He was heading to work and driving
north down the hill on 12^th Street. He was following the defendant’s
vehicle . He noticed Mr. Anderson start to cross the street and remembers
wondering if the defendant could see him.

[13]        
Mr. Kirkpatrick saw Mr. Anderson go up in the air, come straight down on
the hood of the defendant’s car and then roll off, landing on the street.

[14]        
Mr. Lemay drove the northbound vehicle that stopped for Mr. Anderson to
cross. He testified at the Liability Trial but not before me. The Liability
Decision describes part of his evidence at paras. 50-54:

[50] Mr. Lemay was driving his service van north on 12^th
Street on January 9, 2008, on his way to a jobsite just after 7:00 a.m. He
described the morning as having “low light” and being “cloudy”. He knows the
route and said it could be busy in the morning. However, on that morning the
traffic was moderate.

[51] Mr. Lemay had his headlights on, was alert, not using
his cell phone and not drinking coffee. His recollection was that there was no
vehicle in front of him.

[52] As Mr. Lemay came up 12^th Street, he saw [Mr.
Anderson] crossing the street south of the intersection of 12^th and
5^th. He was south of the intersection crossing on an angle walking
in the general direction of the bus stop. Mr. Lemay knows the intersection from
having travelled 12^th Street frequently and stated the pedestrian
was not in the intersection when he was hit.

[53] Mr. Lemay estimated [Mr. Anderson] was walking quickly
approximately 70 to 80 feet below the marked intersection with his head down.
He said [Mr. Anderson] was “Making a beeline for the bus stop”. Mr. Lemay did
not see [Mr. Anderson] look behind himself to check for cars. He estimated that
this would have been about 50 to 75 feet from the closest corner (the southwest
corner).

[54] Mr. Lemay apprehended the
impact as he saw [Mr. Anderson] walking on the diagonal as the defendant’s car
approached. He realized that if [Mr. Anderson] maintained the diagonal on which
he was walking, he would be hit by the southbound car approaching.

[15]        
Mr. Lemay saw Mr. Anderson go up on the hood of the defendant’s car. He
also stated that when he saw the impact, “[Mr. Anderson] was doing a cartwheel
in the air” but he did not see where in relation to the defendant’s vehicle he
came down. He was not asked and did not explain exactly what he meant by a cartwheel.

[16]        
Mr. Kirkpatrick and Mr. Lemay’s evidence is generally consistent with the
defendant’s evidence. The Liability Decision summarizes the defendant’s background
and some of her evidence at paras. 32-35 and 42-44:

[32] [The defendant] described her journey down 12^th
Street as uneventful until the plaintiff suddenly appeared in front of the
right front of her car and she hit him. Until the moment of impact, she did not
see him.

[33] [The defendant] states that her car was in good repair.
She was awake and alert and had not consumed any alcohol or drugs the night
before or the morning of the [A]ccident. She does not have any restriction on
her driver’s license which requires that she use corrective lenses. She has
been driving since she was 16.

[34] She lives nearby with her parents and knows the area
well having grown up in New Westminster. The intersection of 12^th
Street and 5^th Avenue is 5 minutes from her home. She is 29 years
old.

[35] [The defendant] was on her way to pick up a paycheque at
work. She was not working that day and was not in a hurry. Her evidence was
that she was travelling at the speed limit. Mr. Anderson agreed that when he
first noticed a car descending the 12^th street hill, it did not
appear to be speeding.

. . .

[42] She stated that the plaintiff “Came out of nowhere”. By
her description, the plaintiff was walking quickly towards the bus stop and was
well outside the unmarked crosswalk. She hit him when she was south of the
unmarked crosswalk in the area between the shops and in front of the blue bins.
…

[43] When she first saw the plaintiff he was about one foot
in front of her car. She says she had no opportunity to stop or to sound her
horn, although she applied her brakes.

[44] The plaintiff made contact
with the right front of her car, rolled up onto the hood and then off onto the
ground on the passenger side of her car.

[17]        
Mr. Anderson’s evidence of events leading up to impact was generally
consistent with the other witnesses’ testimony, but there is a gap in his
recollection.

Mr. Anderson’s condition immediately after the Accident

[18]        
After the Accident, Mr. Kirpatrick turned right and parked his vehicle about
a half block down the hill on 5^th Avenue and went immediately to
where Mr. Anderson lay. Another person arrived at the scene around the same
time.

[19]        
Mr. Kirkpatrick had taken first aid in his past and knew that he should
ask Mr. Anderson questions to assess his level of awareness. Mr. Anderson easily
and clearly answered questions about the date, time, and his location. He provided
his name and a description of where he was hurt. Mr. Kirkpatrick could tell Mr.
Anderson was in pain by his grimacing. This suggests Mr. Anderson was aware of
his injuries. Mr. Kirkpatrick and an unidentified man helped Mr. Anderson
onto the sidewalk. Mr. Anderson was able to maneuver himself a bit to assist
as they lifted him. This is consistent with another witness who said Mr.
Anderson “stumbled” to the sidewalk.

[20]        
Mr. Lemay also saw the Accident but looked away as he parked and got out
of his vehicle. When he looked back, he saw the plaintiff standing and “kind of
walking around in a daze” although he did not actually see the plaintiff stand
up. The defendant’s evidence is consistent, as described in the Liability Decision
at paras. 44-45:

[44] . . . After the impact, [the defendant] saw the
plaintiff hit the ground, jump to his feet and then, on instruction from people
on the sidewalk, he lay down on the sidewalk, presumably awaiting the arrival
of an ambulance.

[45] By then, she had left her
car, and gone towards the plaintiff. He was conscious and lying on the
sidewalk. Once the police arrived, she described what had happened. She was not
charged as a result of the [A]ccident.

[21]        
Mr. Kirkpatrick stayed with Mr. Anderson until the ambulance arrived.

[22]        
Mr. Anderson cannot remember the time between seeing the car “right on
him” or “out of the corner of his eye” and when he was lying on the sidewalk
and being told to stay down. His memory of the ambulance ride and time at the
hospital is spotty and not very detailed. The clinical and expert reports show
that Mr. Anderson’s recollection and recitation of these events differed
at different points of time. This is not uncommon.

[23]        
Mr. Scott Lequesne and Mr. Tony Siedschlag are paramedics who attended
the Accident. Both had over seven years’ experience as paramedics at that time.
That morning Mr. Siedschlag drove and his role was to secure the site while Mr. Lequesne
immediately went to Mr. Anderson. They jointly completed a form called the
“Crew Report”.

[24]        
The Crew Report’s primary purpose is to record information that is
useful for the hospital. Completing the form is mandatory. Portions of the form
are recorded contemporaneously with events, or else very shortly after events, rarely
later than moments after the ambulance arrives at the hospital. Accordingly, paramedics
have adopted particular habits or practices to aid in the quick and accurate
completion of the Crew Report. For example, Mr. Lequesne puts quotation
marks around words or phrases that come directly from patients.

[25]        
The Crew Report shows the ambulance arrived at the Accident scene within
two minutes of leaving the station. Mr. Lemay testified that when he got out of
his vehicle the person in the vehicle behind him was already calling 911; it is
safe to assume this was within one or two minutes of the Accident. Assuming no
more than five minutes between the call to 911 and the ambulance leaving the
station (the station was located not very far away), I find the Ambulance
attendants were at the scene within about 10 minutes of the Accident.

[26]        
Mr. Anderson’s chief complaint to Mr. Lequesne was pain in his hip and
some pain (cramping) in his back. Mr. Anderson had an initial Glasgow Coma score
of 15 (indicating no drop in Mr. Anderson’s level of awareness). Both Mr.
Lequesne and Mr. Siedschlag testified that they are constantly monitoring a
patient’s state of awareness and would make a note if they noticed diminished
alertness; there is no such note on the Crew Report.

[27]        
The Crew Report contains Mr. Lequesne’s contemporaneous notes of what he
was told happened:  “[Patient] struck low speed by small car while crossing in
crosswalk, [Patient] struck L side, [Patient ] ‘jumped’ to avoid being hit”. It
also records no loss of consciousness.

[28]        
While Mr. Lequesne assessed Mr. Anderson, Mr. Siedschlag surveyed the scene
in order to plan how best to get the patient to the ambulance. He talked to bystanders
to get as much information about the Accident as possible. That information can
be useful for hospital staff. For example, it is not uncommon for there to be extensive
damage to a vehicle indicating a serious accident, yet a patient may say he or
she feels fine and does not need to go to the hospital. That would be an indication
that the patient is unable to assess his or her own physical functioning and
may be in shock; this would be reflected in the Crew Report.

[29]        
Mr. Siedschlag said there was minimal damage to the car. This evidence
is corroborated by Mr. Gali, the ICBC estimator who examined the defendant’s
car after the Accident. The defendant was driving a 4-door 2002 Chevrolet Cavalier;
it appears to be a standard, small-sized sedan. Mr. Gali was able to distinguish
“fresh” scratches from the Accident from those that were on the car before. Three
spots on the car had “fresh” scratches: two on the hood and one on the
passenger-side view mirror (which appeared to have a bit of paint scratched
off). These scratches were small. The car had no dents and no damage to the
front bumper or the plastic bug shield just above. The estimate for repairs was
$450.

At the Hospital

[30]        
Mr. Anderson was taken to the emergency room at Royal Columbian
Hospital. Dr. Ehrart was the emergency room physician who first examined
Mr. Anderson about 10 minutes after the ambulance arrived. He noted that Mr. Anderson
reported no headache, no neck pain, and no tenderness or discomfort in his neck.
All of this was consistent with Dr. Ehrart’s examination of Mr. Anderson’s head
which revealed no blood and/or pain, either of which may suggest a head injury.

[31]        
Dr. Ehrart noted on the medical chart (he testified he has a distinct
memory of doing this) that Mr. Anderson says he “pushed off with both hands”
from the hood of the car and was “lucky” to get out of the way in time. It was
put to Dr. Ehrart on cross-examination that Mr. Anderson’s recollection could
be inaccurate because of the pain he was in, but Dr. Ehrart confirmed that if a
patient was in an unusual amount of pain that would likely affect his awareness,
he would have noted so on the medical chart; he did not.

[32]        
Dr. Douglas was the orthopedic resident who examined Mr. Anderson at the
hospital. His notes record that Mr. Anderson was alert and that Mr. Anderson said
he did not lose consciousness. Dr. Douglas recommended surgery for Mr.
Anderson’s fractured clavicle but no intervention for the other fractures because
they would heal on their own. Dr. Douglas also noted Mr. Anderson’s lack of any
head injury.

Mr. Anderson’s Recovery

[33]        
Mr. Anderson was released after about six hours at the hospital and went
to his parents’ home to recover. He returned for surgery on his fractured
clavicle a week or so later and was sent home that same day.

[34]        
Dr. Stone performed the surgery, which involved inserting a hook plate
into Mr. Anderson’s shoulder. Dr. Stone recommended later removal of the plate
to avoid “impingement syndrome” which causes pain. Mr. Anderson has not had the
hook plate removed, apparently on the recommendation of his family doctor, Dr.
Rondeau. During testimony, however, Dr. Rondeau clarified that he did not
intend to interfere with Dr. Stone’s recommendation.

[35]        
Mr. Anderson stayed with his parents for about two months after the
Accident. For about two weeks he was completely dependent upon his parents,
even for personal care because he was essentially immobile. He had shoulder
pain and could not weight bear on his hip so his father had to lift him so he
could use a commode. Once he re-gained some mobility, Mr. Anderson walked with
crutches and then a cane for some time. About two months later, he returned to live
at his apartment.

[36]        
Dr. Stone assessed Mr. Anderson about 3 1/2 months after the Accident and
noted “his incision is well healed” and an X-ray showed the fracture had healed.
Dr. Stone said Mr. Anderson was back to full activities with regard to his
shoulder, although his range of motion was restricted. He repeated earlier
advice that the hook plate should be removed to mitigate, if not eliminate,
symptoms of impingement that Mr. Anderson had started to experience. Dr. Stone
also noted the pelvis fracture had healed.

[37]        
Mr. Anderson returned to work on a part-time basis after the Accident in
February 2008 and resumed full-time work by late March 2008. At first he could
not lift anything over five pounds with his left arm but that has gradually
improved. He worked at The Book Company until the store closed and all
employees were let go on about March 31, 2009.

Mr. Anderson’s life before the Accident

[38]        
Mr. Anderson is in his late 40’s and lives in New Westminster, but he grew
up in Vancouver. He has one sister and two brothers, all older than him. Mr.
Anderson’s early childhood was marked by his father’s alcoholism which prevented
them developing a close relationship. Mr. Anderson’s mother took the children
out on weekends to go hiking, to visit the planetarium or aquarium, and to do other
activities, as a way to shield her children as much as possible from her
husband’s alcoholic behaviour, which included angry outbursts and demeaning
comments. When Mr. Anderson was about 11, his father quit drinking and their relationship
improved. Mr. Anderson’s father now suffers from dementia.

[39]        
Mr. Anderson lived with his parents until he was 33. He only moved out
because his parents downsized from their house to live in a manufactured home. Mr. Anderson
then rented an apartment with a friend and another person but only for six
months. He said he could not tolerate the arguments that came up and was uncomfortable
living with the person he did not know. He then moved into his own apartment in
a building in which his brother and sister-in-law lived at the time.

[40]        
Since moving out on his own, Mr. Anderson still spent an enormous amount
of time at his parents’ house, staying with them every weekend and holiday. His
family gathered at his parents’ house on Sunday night for dinner and Mr.
Anderson attended every Sunday unless he was working.

[41]        
Mr. Anderson never obtained his driver’s license and travels by bus. He
found driving “aggravating” and prefers to take the bus where he can read.

[42]        
Mr. Anderson’s elementary school years were unremarkable except for four
head injuries he suffered. One injury is when he hit his forehead on the corner
of a coffee table. Two happened when he fell off a bike and one when he fell
from a tree. He saw “stars” after the fall from the tree. These injuries all
occurred between the ages of about 6 or 7 to about 9 or 10.

[43]        
Mr. Anderson did not enjoy high school. By grade 11, has was skipping many
classes and failing subjects. He was asked by the Principal to leave and come
back the following September to re-enroll and complete grade 12. He did
re-enroll in September, but did not stick with it. Later Mr. Anderson took night
classes in an effort to complete grade 12. The first was psychology and he
enjoyed it, receiving an A. The second was classical literature which he did
not finish. He found the material too difficult and said he could not “get into
it” so he quit going. He remains one credit short of getting his Grade 12
certificate.

[44]        
No one in his family encouraged Mr. Anderson to complete his schooling,
or expressed disappointment that he did not finish grade 12. His sister described
that their family did not put expectations on people, and certainly no one
would tell Mr. Anderson to “buckle down” and finish. She does not know if Mr.
Anderson had ambitions or any specific goals in life; he was and is not an
ambitious person.

[45]        
With regard to family relationships, Mr. Anderson’s sister (Ms.
Anderson) described that the family is guarded about displaying emotion; she
said she was the most emotive person in the family. Mr. Anderson tended to
keep things to himself, and internalize his emotions. Despite this, it is clear
Ms. Anderson has a close and caring relationship with Mr. Anderson and the
changes she sees in his behaviour have been difficult for her to witness. Mr. Anderson’s
mother’s testimony was consistent with Ms. Anderson’s; she felt very close to Mr.
Anderson and they spoke often. To her, the changes in his behaviour have been
significant.

[46]        
Mr. Anderson’s employment history is mostly in retail sales and he
typically earned just at or moderately above minimum wage. He first worked as a
gas attendant at Yellow Cab. When he left that job he was unemployed for about
a year and collected social assistance. He then worked for four years in the
warehouse at A&B Sound but was fired because he showed no interest in progressing
in the organization. He was uninterested in moving up (which would have been to
a sales position) because he disliked what he saw as an overly competitive atmosphere
in the store. He then worked at Grand & Toy for seven years, performing
many of the same functions that he did in his next job at The Book Company.

[47]        
Mr. Anderson started working at The Book Company in about 1999. The job
was ideal for him because he loved reading. While he acknowledged a bit of
disappointment at not receiving a promotion at The Book Company, he was content
to remain at the same position and have the same job for as long as he could.

[48]        
Mr. Anderson is an avid reader. Before the Accident he would read about
three books a month in a variety of subjects, both fiction and non-fiction. He
would talk to his family, especially his mother, about books he was reading and
he enjoyed giving recommendations to customers. He liked being surrounded by
books and people who enjoyed books. He received positive performance reviews
and got along well with his co-workers at The Book Company.

[49]        
He enjoyed watching sports, live or on TV, and he really enjoys football.
He and his sister had season tickets to the BC Lions for a number of years. His
family enjoyed hosting Super Bowl and Grey Cup parties which many neighbours
attended. Mr. Anderson enjoyed preparing for and attending these parties.

[50]        
Mr. Anderson has always had a very limited social circle. He has had
only one girlfriend and that relationship ended after eight years when he was 24.
His family is unaware why that relationship ended. He testified about only one close
friend, but has had minimal contact with her since she moved away in 1995. He
says he socialized with his co-workers at the bookstore, but he did not see
them outside work or work-related activities (such as work organized pub
nights). He spends almost all his free time at his parents’ house; no one in
his family visits him at his apartment. He does not play any sports, have any
hobbies, or belong to any organizations or clubs. His evenings usually
consisted of staying at home, watching TV.

[51]        
Two other things feature prominently in the evidence: Mr. Anderson’s
anxiety and his alcohol consumption.

[52]        
Mr. Anderson’s family doctor, Dr. Rondeau, noticed symptoms of anxiety in
Mr. Anderson as a teenager and recommended counselling but Mr. Anderson did not
see a counsellor. Mr. Anderson’s mother and sister testified about his anxiety.
They described Mr. Anderson as often being tense, nervous, or anxious when he
was growing up. His mother noticed his anxiety become much more prevalent in
high school. He was very anxious and tense about his classes and school
generally and did not want to attend.

[53]        
Mr. Anderson agreed with those descriptions of his anxiety. He also says
his anxiety caused him tension, difficulty concentrating, difficulty relaxing
and sleep problems. Mr. Anderson reports he was not comfortable with
strangers or in large groups of people, both of which contributed to his
discomfort in, among other situations, high school. When he was working,
sometimes he would stay awake at night with his mind racing, worrying whether
he had done things at work well enough.

[54]        
Mr. Anderson has a history of excessive alcohol consumption. Mr. Anderson
admits he started drinking at about age16 and got drunk a couple times every
month as a teenager. His mother and sister knew he was drinking, and agreed
that it was sometimes to excess. He estimates that in his 20’s and 30’s he drank
every day, mostly alone. He admits to drinking about eight to 10 beers a day
every day in his 20’s and 30’s but agreed it was possible he may have drunk as
many as 12 beers every day. At one point Dr. Rondeau expressed concern to him
about his excessive drinking (especially given his father’s history), but Mr.
Anderson has never taken steps to address his alcohol intake. Some doctors who
testified speculated that Mr. Anderson’s alcohol consumption was a form of
self-medication; alcohol helped him cope with his anxiety because of its
sedative effect.

Mr. Anderson’s life after the Accident

[55]        
Mr. Anderson says that since the Accident he has a diminished ability to
concentrate or focus, and has trouble remembering some things. He needed “cheat
sheets” at the bookstore in order to do computer tasks he did easily before the
Accident. He says he is more easily distracted and has difficulty multi-tasking.
He has difficulty following conversations that are not one on one. Sometimes he
has to re-read passages in a book to remember the plot. He also says the range
of books he now reads is more limited than before the Accident.

[56]        
He suffers from fatigue, commenting that he feels physically and
mentally exhausted after a day of work. He could not describe why he was
unemployed for so long after The Book Company closed. He said he felt “stuck”
and just “couldn’t bring himself” to apply for jobs or follow up on
applications.

[57]        
His family has noticed changes in his mood and behaviour. He used to get
so excited watching football games that you could hear him cheering his team
from another room. Mrs. Anderson says that when he watches football now, she
cannot tell if he is excited or not. Mrs. Anderson used to discuss movies and
books a lot but she noticed Mr. Anderson does not talk about books nearly as
much. His mother says Mr. Anderson gets angry if he is interrupted when
watching TV and he tells her that he feels like he “loses his place”. His anger
is a new behaviour.

[58]        
Both his mother and sister remark that he no longer participates in
family discussions. Mr. Anderson still goes to his parents’ house for Sunday
dinner but he now eats by himself in another room. This is a dramatic change
for the family. Mr. Anderson says he gets frustrated being at the table
with different conversations going on at once. After eating, he spends his time
on the computer, watching TV, or just being in a part of the house he can have
to himself.

[59]        
Many witnesses commented that Mr. Anderson’s face displays a “flat”
affect, displaying little if any emotion. He reports an internal lack of
emotionality. He does not feel sad; he says he does not really “feel” at all. His
sister commented on the same loss of emotionality and his mother says she
rarely sees emotion in him.

Findings of Fact

[60]        
I find the following facts are proven on a balance of probabilities:

·      
Mr. Anderson was not “struck” by the defendant’s car, but either
pushed off or jumped out of the way, thus largely avoiding the impact.

·      
His fractures were more likely than not caused by his fall to the
ground as opposed to a collision with the car.

·      
His fractures have healed but he still has minor pain in his
shoulder.

·      
Mr. Anderson did not lose consciousness and was not disoriented
after the Accident.

·      
Before the Accident Mr. Anderson had significant difficulties
with anxiety for which he has not sought or received medical treatment. This
anxiety has had a significant impact on his life.

·      
Mr. Anderson drank an excessive amount of alcohol for a very long
period of time, possibly decades.

·      
Mr. Anderson’s alcohol consumption has decreased since the
Accident.

·      
Mr. Anderson has a flat affect and his behaviour around his
family is different since the Accident. He has increased instances of
irritability, frustration and anger.

·      
Mr. Anderson says he has some difficulties with concentration and
learning new tasks.

ANALYSIS

[61]        
The parties agree on the applicable legal principles which were recently
and conveniently summarized by Voith J. in Brewster v. Li, 2013 BCSC 774
at paras. 77-84. The points most relevant to this case can be summarised as:

·      
The plaintiff must establish that the defendant was both the
“cause in fact” and the proximate cause of any damage suffered.

·      
The test for causation in negligence is the “but for” test. The
court must determine if, without the tortious act, the plaintiff’s injury would
have resulted. If the answer is “yes”, the defendant is not liable for the
injury or the losses. If the answer is “no”, however, the defendant is liable
to the plaintiff for the whole of the losses flowing from the injury.

·      
The plaintiff must prove causation for both injury and loss, but
the loss must be caused by the injury. In this context “‘injury’ refers to the
initial physical or mental impairment of the plaintiff’s person as a result of
the [defendant’s act], while ‘loss’ refers to the pecuniary or non-pecuniary
consequences of that impairment”: Blackwater v. Plint, 2001 BCSC 997 at
para. 364. In other words, ‘injury’ is concerned with establishing the
existence of liability, and ‘loss’ with the extent of that liability: Blackwater
at para. 363.

·      
The burden is on the plaintiff to prove, on a balance of
probabilities, both the injury and the loss.

·      
Generally, the defendant must put the plaintiff back in the same
(but not better) position he or she would have been in had the tortious act not
occurred.

·      
The defendant must take the plaintiff as she finds him, even if his
injuries are unexpectedly severe, or more dramatic than ordinarily suffered
because of a pre-existing condition (the “thin skull” principle).

·      
But the defendant is not liable for the debilitating effects of a
pre-existing condition that the plaintiff would have experienced regardless of
the accident (the “crumbling skull” principle). In other words, compensation is
not for the loss from the pre-existing condition, only for the increased loss
caused by the negligent act.

[62]        
Applying the legal principles to this case, four issues emerge:

1.       Did Mr.
Anderson suffer a mild traumatic brain injury in the Accident?

2.       If
so, has that brain injury detrimentally affected his ability to earn an income
or provide for his own future?

3        Does
Mr. Anderson’s physical injuries detrimentally affect his ability to earn an
income or provide for his own future?

4.       What damages are Mr. Anderson
entitled to?

1. Did Mr. Anderson suffer a mild traumatic brain
injury in the Accident?

[63]        
Mr. Anderson says the MRI scans of his brain and his neuropsychological
functioning prove that he suffered a brain injury. He also says his behavioural
changes are consistent with him having a brain injury.

[64]        
The defendant says the Accident did not cause Mr. Anderson to suffer a
brain injury and that any significant behavioural changes (if proven) are
caused by a combination of the plaintiff’s pre-existing and underlying anxiety
and his pattern of alcohol consumption.

[65]        
In order to determine if Mr. Anderson suffered a brain injury from the Accident,
I analyze three categories of evidence: (a) medical opinion on Mr. Anderson’s
MRI brain scans; (b) medical assessments of Mr. Anderson’s brain functioning,
and (c) observed changes in Mr. Anderson’s behaviour.

a.       Medical opinion on Mr. Anderson’s MRI
Brain Scans

[66]        
Two radiologists gave evidence about brain imaging: Dr. William Siu and
Dr. Jason Clement.

[67]        
Dr. Clement is presently the Associate Director of the Department of
Radiology at St. Paul’s Hospital where he has worked for 10 years. He is also
an Assistant Clinical Professor at UBC. He specializes in neuro-anatomy and spends
about 1/3 of his time performing vascular procedures, 1/3 of his time on
neurological imaging, and 1/3 of his time on muscular-skeletal imaging.

[68]        
Dr. Siu is an expert in neuroradiology and interventional radiology. Neuroradiologists
are specialists in brain and spine imaging. On a typical day, Dr. Siu
reviews and interprets 50 – 60 brain scans. Interventional radiology involves
performing procedures such as angioplasty, stenting, or putting catheters and
balloons in people’s arteries and veins. There are only about 30 interventional
radiologists in BC and only three or four of them specialize in the brain; Dr.
Siu is one of those. He practices at the Royal Columbian and Eagle Ridge
Hospital. His credentials as a radiologist specializing in the brain are
impressive.

[69]        
Both radiologists were credible and reliable witnesses and their
testimony was probative and helpful. Both doctors provided consistent
information about brain anatomy and both observed lesions on Mr. Anderson’s
brain; however, they differ in their opinion as to what most likely caused
those lesions. A brief (and overly simplistic) summary of the noncontroversial
evidence relating to brain anatomy and brain imaging puts their opinions in
context.

The Brain

[70]        
The brain has a gelatinous consistency and, in simple terms, two layers.
The thin outer layer (the grey matter) is composed mostly of neurons and is
about 1 cm thick. Inside that is the white matter, composed of axons and
neurons which are only about 1/1000 mm thick. Axons connect neurons in the grey
matter to those in the white matter. Dr. Clement likened them to electrical
cables. White matter meets grey matter at the white/grey junction.

[71]        
Two types of brain injury are commonly seen in motor vehicle accident patients:
post-traumatic encephalomalacia and diffuse axonal injury (“DAI”).
Post-traumatic encephalomalacia is shrinkage in brain volume over the long term
caused by brain bruising. The brain gets bruised when it impacts the inner,
bony surfaces of the skull, typically from an “acceleration/deceleration”
incident. Brain tissue cannot repair itself if damaged, so over time this bruised
or scarred brain tissue leads to a decrease in brain volume.

[72]        
DAI occurs when the grey and white matter shift relative to one
another and axons are sheared, severing the accompanying capillaries which
bleed. Typically, this results from some form of direct trauma to the head. The
doctors agreed, however, that one can get DAI without a strike to the head; although
Dr. Siu testified that in all cases of DAI where the head was not struck, there
would need to be a very high speed motor vehicle impact. “Shaken baby syndrome”
produces DAI, but it is improbable one could sufficiently shake an adult to
produce DAI.

[73]        
If the brain bleeds, blood has nowhere to escape. Over time it
transforms into hemosiderin. Hemosiderin is high in iron and thus can be easily
detected on an MRI scan (when set to the right resolution). Spots of
hemosiderin show up as lesions.

[74]        
Some non-traumatic events can also create brain lesions, only two of
which may be implicated in this case: (a) micro-hemorrhages from hypertension
and (b) cavernous malformation, a common congenital condition.

[75]        
The age of hemosiderin deposits is indeterminable; thus no doctor can
say with certainty what caused Mr. Anderson’s brain lesions. Doctors can,
however, offer an opinion based on other information such as the location of
the lesions, Mr. Anderson’s history, and his immediate condition
post-injury.

Mr. Anderson’s Brain Scans

[76]        
Dr. Siu and Dr. Clement agreed that three of Mr. Anderson’s brain
lesions were traumatic (not the result of disease or medical condition) in
origin. Dr. Clement concluded:

“In summary a
young patient with three hemorrhages in the locations demonstrated on Mr.
Anderson’s MRI almost certainly has hemorrhagic diffuse axonal injury. This
injury would be expected to affect all portions of [Mr. Anderson’s] brain and
to result in deficits in nearly all cognitive domains but particular [sic]
affecting memory and executive functioning”.

[77]        
Dr. Siu identified a fourth lesion in the brain stem which he concluded
was most likely the result of cavernous malformation or hypertension. Dr. Siu
explained that any lesion in the brain stem caused by DAI would occur only when
the patient is immediately killed or severely compromised (comatose).

[78]        
Dr. Siu concluded the three lesions were more likely caused by Mr. Anderson’s
childhood injuries than the Accident. His opinion is concisely stated:

“Since Mr.
Anderson did not hit his head and did not have any immediate neurologic
symptoms from the [Accident] but had [a] history of several head trauma
episodes in childhood, it is more likely that the three cerebral hemispheric
lesions were caused by one of his childhood head injuries and not from the [Accident].
In particular, the occipital lobe lesion [one of the three located in the white
grey junction] is situated in the visual cortex, and thus, likely had developed
during the traumatic episode when he struck his head during childhood and “saw
stars”.

[79]        
No doctor thought Mr. Anderson showed signs post-traumatic
encephalomalacia. I infer from this that Mr. Anderson’ brain was not bruised in
the Accident.

Conclusion – Brain Imaging

[80]        
With regard to the MRI scans, Dr. Siu was aware of Mr. Anderson’s
childhood head injuries whereas Dr. Clement was not; this diminishes the weight
I place on Dr. Clement’s report. Dr. Siu’s assessment that the injury
where Mr. Anderson “saw stars” was consistent with the lesion located in the
occipital lobe is compelling.

[81]        
Dr. Siu also has more extensive experience with traumatic brain
injuries. I find he has a deeper knowledge and understanding of all aspects of brain
trauma imaging, evinced by the comprehensiveness of his testimony and his
expert report.

[82]        
Dr. Clement’s practice is not focussed on brain imaging or neurological
interventions. Also, Dr. Clement did not always provide sufficient background to
explain his conclusions.

[83]        
Together with his greater experience and specialization, I find the nexus
between Dr. Siu’s assumptions and the facts in this case justifies placing great
weight on his opinion and placing much less weight on Dr. Clement’s report.

[84]        
Consequently, I conclude, on a balance of probabilities, that the brain
lesions were not caused by the Accident. I agree and accept Dr. Siu’s
conclusion that childhood injuries most likely caused the lesions (except the one
in the brain stem).

b.       Medical Assessments of Mr. Anderson’s
Brain Functioning

[85]        
Testing brain functioning is difficult because of the lack of a
baseline; no one expects to be injured in a car accident (or otherwise) so
there is typically no pre-accident assessment of functioning to which to
compare. Instead, doctors conduct testing and assessments, analyze the results,
and together with other information (usually patient history, other clinical
records, and collateral witnesses) form an opinion.

[86]        
Four medical experts provided opinions that I place into the admittedly
loose category of brain functioning assessment. I realize that evaluating this
evidence under one description likely blurs the definitional and clinical differences
between psychiatrists, psychologists, neurologists, and neuropsychologists. But
my task is to analyze and assess the medical evidence as an aid to making
conclusions about the legal issues in this case; I am not making medical
conclusions.

[87]        
I heard evidence from Dr. Wilensky, a neuropsychologist, and Dr. Prout,
a neurologist. I also heard from two psychiatrists: Dr. Ancill and Dr.
O’Shaughnessy. Given the close proximity of these fields of medicine, there was
significant overlap in the doctors’ analysis and discussion. Below I refer
mainly to those parts of their evidence that is most closely related to the
expertise for which their evidence was admitted.

Impact of Prior Head Injuries

[88]        
One topic addressed by all four doctors was the impact previous head
injuries has on a person who suffers a further head injury. Mr. Anderson
suffered four head injuries during his childhood (all at under the age of 10);
one of those injuries required stitches and in another Mr. Anderson “saw stars”.
The injuries occurred within as few as three years from each other.

[89]        
In very general terms, a head injury equal in force to a prior one, may
have a greater negative impact on the brain than the first injury. Dr. Prout
and Dr. O’Shaughnessy were clear, however, that this is most likely when
the injuries occur close in time (the closer in time for the two injuries, the
more likely for an increased negative outcome). They both stated that the best
current medical research on this comes from analysis of sports injuries but
acknowledged this field of study is expanding.

[90]        
The medical evidence is unclear on the maximum period of time a prior
head injury can negatively affect recovery from a later head injury but there
was no suggestion in the evidence that you could link head injuries which
occurred decades apart.

[91]        
The evidence was also consistent that children’s brains are much more
vulnerable to injury that adult brains. Because children’s brains are not fully
developed, a childhood head injury is more likely to have a permanent effect on
the brain than if injured as an adult.

[92]        
Based on this evidence, I find on a balance of probabilities that
Mr. Anderson’s childhood head injuries could not have produced a greater
negative affect on his brain if he suffered a head injury in the Accident; they
were too long ago in his past.

Neurological Assessment

[93]        
Mr. Anderson called Dr. Wilensky as an expert witness. Dr. Wilensky completed
a neuropsychological assessment of Mr. Anderson, which involved testing for intellectual
capacity, memory and learning, attention and speed of processing, perceptual
motor skills, executive functioning, personality and mood, and assessing his
academic achievements. He was a credible and reliable witness.

[94]        
The testing took about 7 l/2 hours, during which time Mr. Anderson was
cooperative and patient and demonstrated good stamina. A number of the tests
had “sub-tests” within them. Dr. Wilensky’s report describes the significance
of those tests and explains Mr. Anderson’s performance on them.

[95]        
Mr. Anderson scored within the average range for almost all tests. His
Index Score of Verbal Comprehension and his score on the Weschsler Memory scale
were in the average to high average range. He scored at the 99th percentile in
vocabulary, which Dr. Wilensky noted is highly unusual for someone who has not
completed high school.

[96]        
Mr. Anderson scored in the low average range for processing speed. His
scores were in the low average to impaired range on measures of simple
attention. His Auditory Verbal Learning score dropped significantly following
the interference learning trial which indicates a loss of information in short
term memory due to interference.

[97]        
Dr. Wilensky’s opinion was “on the current neuropsychological
assessment, Mr. Anderson appears mostly intact”. He did note some “subtle signs
of impairment” that are “consistent with” possible frontal lobe involvement.
During cross-examination he admitted the conclusion about possible frontal lobe
involvement was primarily based on looking at one of the sub-tests in
isolation.

[98]        
Dr. Wilensky recommends “a referral for cognitive-behavioural treatment
for depression, anxiety and coping skills”.

[99]        
Dr. Prout’s recommendation is similar. Dr. Prout is a neurologist whose
practice is primarily clinical. He interviewed Mr. Anderson and performed some
tests. Prior to preparing his report, Dr. Prout reviewed the reports of, among
others, Dr. Ancill, Dr. Wilensky, and Dr. O’Shaughnessy, as well as
Mr. Anderson’s MRI. Dr. Prout was credible and reliable.

[100]     In Dr.
Prout’s opinion, Mr. Anderson did not suffer a traumatic brain injury in the Accident.
He says Mr. Anderson does not demonstrate retrograde amnesia or post-traumatic
amnesia; Mr. Anderson is unaware of the actual impact in the Accident and how
he found himself on the sidewalk, but according to Dr. Prout, “this is not
particularly unexpected given the unexpected and traumatic nature” of the Accident.
He says it is not indicative of any kind of amnesia. With regard to his
behavioural changes, Dr. Prout states:

Mr. Anderson has
displayed some behavioural changes and changes in his emotional state that, in concert
with sleep issues and pain issues that he has reported, more than adequately
explain the subjective cognitive concerns that he has had.

[101]     And
further:

Mr. Anderson
describes nonspecific symptoms of fatigue as well as difficulties with
cognitive efficiencies. He is deconditioned, not physically active and appears
to have issues relating to social isolation and social anxiety which do not
appear to only post-date the [A]ccident. I would defer to experts in the field
of psychiatry but it is my opinion that Mr. Anderson has some emotional and
behavioural issues resulting in many of his nonspecific complaints and these
complaints are not due to effects of brain trauma or any other neurological disorder.

[102]     Dr. Prout’s
recommendation for Mr. Anderson’s future treatment was “attention to
psychological and emotional issues”, although he would defer to a psychiatrist
on that conclusion.

Psychiatric Evaluation

[103]     The two psychiatrists’
testimony differed significantly.

[104]     Dr. Ancill
has had a clinical practice for 25 years focussed on patients with degenerative
brain disorders and acquired brain injuries. He estimates about 90% of his
current clinical practice involves assessing, diagnosing, and treating people
with the psychiatric consequences of trauma. Of that 90%, approximately 70% are
patients that have sustained an acquired brain injury (from stroke, trauma,
etc.).

[105]     In
preparing his report after interviewing Mr. Anderson, Dr. Ancill read the
Ambulance Crew Report, clinical records from Royal Columbian Hospital, and
Mr. Anderson’s physiotherapy records. In Dr. Ancill’s opinion, Mr.
Anderson suffered a concussion. He explains:

I based this
diagnosis on his brief period of retrograde amnesia during which he has no
recall of trying to jump out of the way of the car, or of the collision. This
was followed by a period of dense post-trauma amnesia during which he did not
know how he got to the side of the road.

[106]     Dr. Ancill
also notes that Mr. Anderson complains of a number of “symptoms that indicate a
chronic post-concussion syndrome”. He says in his report that anxiety and
depression can act as symptom “amplifiers” but Mr. Anderson’s current symptoms
are “not likely affected by pain, depression and anxiety”. There is no
explanation for this conclusion.

[107]     Dr. Ancill
also states that “[p]rior to the accident Mr. Anderson … enjoyed watching
movies, was an avid reader and would walk. [Mr. Anderson] said these had not
significantly changed following the accident”.

[108]     At page 17
of his report, Dr. Ancill states:

Turning to any
depression, while Mr. Anderson said he felt a little sad, he did not affirm the
symptoms of a depressive disorder. However, while I did not think he was
clinically depressed, his affect was blunted and his mother said that since the
accident, his mood was flat and he was emotionally less responsive. I would
therefore consider that he presents with a pseudo depression or type of Aboulia.
This is sometimes referred to in the brain injury literature as a Disorder of
Diminished Motivation.

[109]     Dr. Ancill
states “Abulia, or lack of motivation, is not uncommon following any level of
brain injury” and “with Abulia, the ability to plan and react is preserved, but
diminished in force”. Dr. Ancill recommends both MRI and neuropsychological
testing be done on Mr. Anderson.

[110]     Dr. Ancill
concludes his opinion thus:

But for the
accident of January 2008, I can identify no other reasonable clinical cause of
his current problems. Both Mr. Anderson and his mother said that he was
functioning normally prior to the accident in question.

[111]     Dr.
O’Shaughnessy is a forensic psychiatrist who also assessed Mr. Anderson. He
explained that the speciality of forensic psychiatry relates to the
intersection between psychiatric medicine and legal proceedings, whether
criminal or civil. He has over 30 years’ experience evaluating individuals
traumatized by motor vehicle accidents. He said his practice group makes a
concerted effort to ensure the medical-legal reports they do are equally provided
to plaintiffs and defendants in civil suits.

[112]     Dr.
O’Shaughnessy interviewed Mr. Anderson on October 17, 2011 for about two and a
half hours. He administered some tests to Mr. Anderson and also reviewed the
same records as Dr. Ancill, plus, among other things, Dr. Ancill’s report, Dr.
Rondeau’s records, and statements from Mr. Lemay and Mr. Kirkpatrick.

[113]     Mr.
Anderson reported to Dr. O’Shaughnessy that his physical injuries were “fully
recovered” within six months and while he still experiences occasional pain, it
appears to be minor.

[114]     Dr. O’Shaughnessy
said that from a review of his psychiatric symptoms “it is evident [Mr.
Anderson] had little, if any, complaints”, and Mr. Anderson showed no signs of
mood disorder. Dr. O’Shaughnessy then states:

Subjectively,
the only thing he does complain of is that he now believes his motivation may
be less than it was in the past although frankly this is difficult to evaluate
given his pre-accident alcohol abuse history and behaviour. In particular, he
states he has lost motivation to go out and try and find a job since he was
laid off in March 2009. In my discussions, however, it is clear he has applied
for jobs in retail sales as well as at other bookstores, but became somewhat
frustrated when informed no jobs were available and simply gave up looking. He
has not tried to look for work for some time.

[115]     Dr.
O’Shaughnessy is highly critical of Dr. Ancill’s report and opinion. He states:

“[Mr. Anderson]
denies any other symptoms of “Amotivational Syndrome” as suggested by Dr.
Ancill and frankly Dr. Ancill is simply incorrect in his diagnosis”….

“Dr. Ancill has
opined this man may well have had a brain injury or concussion as well as
“Amotivational Syndrome”. As noted, this is simply a reflection of poor
methodology and there is no basis in the medical evidence to support Dr.
Ancill’s conclusions. Specifically, he has failed to consider the
pathophysiology involved in such disorders and compare it with the actual
injuries sustained in this accident…He has also failed to consider this man’s
alcohol abuse difficulties…Dr. Ancill has further quite literally jumped to
conclusion without any medical basis that this man must have had some frontal
lobe impairment where no such evidence exists”.

…Dr. Ancill has
also assumed this man had a “concussion” based on this man telling Dr. Ancill
some three years later that he had poor memory of the accident. Again this is a
methodological error because you would always wish to look at the data close to
the accident

[116]     Dr. O’Shaughnessy
commented that “Amotivational Syndrome” can be a devastating injury
characterized by a person experiencing a complete loss of pleasure or joy in
virtually all activities and difficulty initiating activities on their own. He
also says that the syndrome can be seen with specific damage to frontal lobes
and that in general “these types of injuries are only sustained in moderately
severe or great brain injuries”. This is not consistent with this case because Mr.
Anderson did not suffer a blow to the head, was not thrown a long distance or
“involved in any situation that would result in ‘shaking’ that some have argued
may result in shear hemorrhaging in the brain”.

[117]     Dr.
O’Shaughnessy concludes his report:

In conclusion,
there is no evidence that this man suffered a concussion of any type, let alone
the type of brain injury that would result in significant impairment as
suggested by Dr. Ancill. In my opinion, Dr. Ancill has utilized improper and
inadequate methodology in coming to this conclusion and his conclusions are
simply unfounded and unsupported by the medical data.

I do not think
this man has suffered any psychiatric disorder as a result of the accident. He
does have ongoing difficulties with alcohol dependency which he reports is in
better control now…”

[118]     His other
observations of Mr. Anderson include identifying his “anxiety type symptoms”
and a past history “remarkable for heavy alcohol consumption”. While he accepts
Mr. Anderson shows low levels of motivation “it is …clear his lifestyle before
the accident reflected similar experiences and behaviour”.

[119]     Dr. Ancill
provided a rebuttal report in which he suggests “[i]t was diminished motivation
I concluded was the issue with Mr. Anderson” and that he relied on behavioural
changes as described to him by Mr. Anderson and his mother. He states “A Mild Traumatic
Brain Injury… is a diagnosis reached clinically and there is an absence of
so-called objective data”.

Conclusion – Brain Functioning

[120]     Overall,
the medical evidence on brain functioning does not support Mr. Anderson’s case.

[121]     Dr. Wilensky’s
ultimate conclusion is that Mr. Anderson is “largely intact”. Both Dr. Prout
and Dr. O’Shaughnessy’s opinion is that Mr. Anderson’s difficulties are not the
result of a brain injury caused by the Accident. Rather, they say his symptoms are
more likely caused by his anxiety and the side-effect of long-term alcohol use.
In their opinion, Mr. Anderson’s decreased alcohol consumption has led to the
anxiety symptoms becoming more noticeable, which has produced the behavioural
changes noticed.

[122]      I find
their reasoning sound and adequately supported by reference to clinical records
and their assessment of Mr. Anderson. This evidence strongly suggests Mr. Anderson
does not have any cognitive deficiencies caused by the Accident.

[123]     The
defendant points out that Mr. Anderson participated in over seven consecutive hours
of testing (for Dr. Wilensky)  in one day without difficulty. The people
administering the tests did not record Mr. Anderson displaying any frustration
or impatience or lack of cooperation or focus. Nor did they observe any significant
emotional deficiencies.

[124]     Mr.
Anderson says no conclusions should be drawn from his behaviour while taking
the test (as opposed to test results) because the quiet environment in which he
was tested did not mimic real life. I agree those observations are not
conclusive, but they are relevant. Two of Mr. Anderson’s chief complaints are
fatigue and difficulty concentrating and yet he was able to perform this arduous
testing with no complaint. This suggests Mr. Anderson’s complaints of fatigue
and lack of concentration might not be caused by a cognitive deficiency.

[125]     With
regard to the psychiatric evidence, I place little if any weight on Dr. Ancill’s
report and evidence for several reasons. Primarily I find Dr. O’Shaughnessy’s
criticisms of Dr. Ancill to be persuasive and compelling.

[126]     Dr. Ancill
interviewed Mr. Anderson at the same time as Mr. Anderson’s mother which is, at
the very least, unorthodox if not problematic methodology. He explained he did
this because observations of family members (“collateral sources”) are very
helpful in assessing whether patients exhibit behavioural changes. That
reasoning is sound but does not explain why the family members needed to be
together for the entire interview, and not at any time interviewed
individually.

[127]     Mr.
Anderson’s and his mother’s report of his behaviour to Dr. Ancill might have
been influenced by what the other person says. I am not at all suggesting
anything untoward or even intentional in Mr. Anderson’s or his mother’s
participation in Dr. Ancill’s interview (or any other). It is common sense that
family members interviewed by a psychiatrist at the same time may
unintentionally shape their observations to be consistent with one another. On
its own, this would not necessarily taint Dr. Ancill’s opinion, but combined
with Dr. Ancill’s cursory dismissal of other collateral information, it diminishes
the reliability of his evidence.

[128]     Dr. Ancill
greatly diminished or completely ignored clinical records, such as the ambulance
Crew Report and Royal Columbian Hospital clinical records. His explanation for
doing so was the people filling those forms probably asked the wrong question
of Mr. Anderson (“what happened?” instead of “what do you remember?”). Dr.
Ancill does not know and did not enquire what questions were asked by the
people who completed the clinical records. He simply assumed the wrong question
was asked and ignored their observations. In my view, Dr. Ancill has exaggerated
the importance of which question is asked, especially when interviewing a
patient years after the Accident.

[129]     Dr. Ancill
took all of Mr. Anderson’s and his mother’s description of Mr. Anderson’s
changed behaviours at face value. Obviously, psychiatric assessment relies
heavily on patient’s self-report. But it is expected that psychiatrists will
exercise their skills and knowledge to assess the subject’s mood and behaviour
in light of all circumstances, especially medically significant factors, in
order to reach an accurate diagnosis. In my view, Dr. Ancill did not do that. I
find that he summarily dismissed or greatly diminished the importance of objective
evidence recorded close in time to the Accident and recorded by people trained
to assess patients’ conditions for injury (the clinical records). This
treatment of the clinical records is, in my view, highly problematic.

[130]     A good
example is Dr. Ancill’s discounting of the Glasgow Coma score of 15 recorded by
the ambulance attendants. He did so because “it would not have reflected Mr.
Anderson’s cognitive state immediately after being struck”. I note Dr. Ancill
did not have the benefit of Mr. Kirkpatrick’s evidence which is
inconsistent with Mr. Anderson having lost consciousness or being
disorientated. Even without that factor, I find it troubling that Dr. Ancill so
easily dismissed the Crew Report.

[131]     It is
curious that Dr. Ancill suggested that even a “brief” loss of consciousness (in
this case he assumed as little as 30 seconds) was medically significant. This
was expressly contradicted by Drs. Siu, Prout and O’Shaughnessy who stated a
“brief” period of loss of consciousness or disorientation that typically
accompanies a mild traumatic brain injury would be about between 15 and 30
minutes. There is simply no evidence that Mr. Anderson was either unconscious
or disorientated within the 30 minutes following the Accident, or at all.

[132]     Dr. Ancill
also ignored or gave little relevance to factors that may very well have
impacted his opinion, such as Mr. Anderson’s anxiety and his history of alcohol
use.

[133]     Dr. Ancill
provided a rebuttal report. Rather than respond to Dr. O’Shaughnessy’s
criticisms of his methodology and conclusions, Dr. Ancill merely provides a
clarification of his earlier report. In my view, the second report does not
clarify the first report, and it is unhelpful. I place no weight on it.

[134]     The facts
provided to Dr. Ancill by Mr. Anderson and his mother did not always match the facts
in evidence before me. For example, Dr. Ancill saw the lack of job search after
the Accident as demonstrating diminished motivation. Mr. Anderson reported
he did not know why he was having trouble going out to look for a job, while in
the past, he would look immediately. This is inconsistent with Mr. Anderson’s
own testimony, which confirmed he was off work and collecting social assistance
for a year after leaving one of his previous jobs. Mr. Anderson also admitted
applying for jobs (albeit only a few) and attending courses at Employment Insurance.
In addition, Dr. Ancill noted Mr. Anderson still enjoyed activities he did
before the Accident (reading, movies and walking) which is inconsistent with
his diagnosis; a lack of joy in activities is an important symptom of a
motivational disorder.

[135]     Overall, I
find Dr. Ancill’s evidence unreliable for all the reasons above. I also find
his expert report analytically weak. Many conclusions are stated with little
reasoning. His rebuttal report in particular is akin to an argument justifying
his earlier conclusions rather than a response to Dr. O’Shaughnessy’s
significant criticisms of his methodology and medical reliability. I place
minimal weight on Dr. Ancill’s evidence.

[136]     I found
Dr. O’Shaughnessy’s report and his testimony to be highly probative, reliable,
and credible. Dr. O’Shaughnessy’s evidence was remarkably consistent with Dr.
Prout’s evidence, both of which closely match the facts found in this case. I
place great weight on their evidence.

[137]     I find the
evidence does not prove on a balance of probabilities that Mr. Anderson’s
brain functioning was impaired by the Accident. I also find that the complaints
reported by Mr. Anderson (described as fatigue, “not having feelings”, easily
confused and low motivation) are more likely than not the result of overall
emotional complications from a medically untreated anxiety issue and possible
after-effects of a history of excessive alcohol use. I find they are not caused
by the Accident (on a balance of probabilities) but are mostly likely appearing
because his decreased alcohol consumption renders his underlying anxiety to be
more prominent.

[138]     Overall,
the medical evidence on Mr. Anderson’s brain functioning does not support a
conclusion that Mr. Anderson suffered a brain injury from the Accident.

c.       Observed Changes in Mr. Anderson’s
Behaviour

His former employment

[139]     Mr.
Anderson’s sister’s and mother’s observations of his behavioural changes is
described above and relevant to this analysis (see paras 51-53).

[140]     Avery
Higgins was Mr. Anderson’s supervisor at The Book Company and testified about
his observations of Mr. Anderson both before and after the Accident. Mr.
Higgins had worked with Mr. Anderson for about nine years. He described
Mr. Anderson as always being punctual and rarely calling in sick; Mr.
Higgins enjoyed working with him.

[141]     When he
started as manager, Mr. Higgins found Mr. Anderson shy with customers. The
previous manager explained that was just Mr. Anderson’s nature. Mr. Higgins
said Mr. Anderson had difficulty initiating conversations with customers and
was a bit reserved but still performed well. Mr. Higgins said Mr. Anderson did
improve his customer relations but it was still his impression that Mr.
Anderson would help a customer only as long as needed, preferring to go back to
what he was doing.

[142]     Like
everyone else in the store, Mr. Anderson would cover the cash register as
needed; there was no specific job for handling cash. Mr. Anderson’s main duty
was receiving and stocking magazines, but Mr. Higgins also trusted him to open
and close the store, taking care of the cash reconciliation. The evidence
established that throughout his work at The Book Company his work was
predictable and consistent.

[143]     When he
returned to The Book Company after the Accident, Mr. Higgins noticed that Mr.
Anderson got frustrated whenever he had to interrupt what he was doing to
attend to the cash register. He also said, however, Mr. Anderson was like that
before the Accident but was a bit more so afterwards.

[144]     Mr.
Anderson had some physical limitations after the Accident. At first he favoured
his left arm and could not lift his right arm higher than his waist, and he
still walked with a cane. However, in Mr. Anderson’s employee review after the Accident,
dated October 5, 2008, Mr. Higgins noted that Mr. Anderson made a full recovery.
His performance score improved on some measures, including customer service,
and his overall score was the highest he ever received, even before the Accident.

[145]     Mr.
Higgins confirmed he administered and reviewed the assessment with Mr. Anderson
and that it was an important part of his job as Manager; he undertook the
evaluations sincerely.

His current employment

[146]     Mr.
Anderson currently works at Staples and Mr. Wong is his supervisor. Mr. Anderson
came to Staples as a “job placement” employee, meaning a job placement
specialist approached Staples on Mr. Anderson’s behalf. Job placement employees
essentially volunteer their time, i.e. they work for no pay, learning the job
in the hope that they get hired on in an entry level position. The employer
understands there may be reasons why the job placement employee has a longer than
average learning curve.

[147]     Mr. Wong
rated Mr. Anderson highly for a job at Staples based on his resume. At the
initial interview, Mr. Wong perceived Mr. Anderson as polite but lacking in
confidence and initiative. Mr. Wong agreed to have Mr. Anderson work for six
weeks and he hired him into an entry-level position after that. Mr. Anderson
has been working there for two years.

[148]     Mr.
Anderson performed well at first. In an email sent about his placement at
Staples to the job placement professional, Mr. Anderson said: “Things are going
great at Staples. I’m doing fine working the extra time. …I asked [Mr. Wong]
yesterday if there was a possibility of making things more permanent … and he
was quite receptive to the idea. He said I’m great with customers and know the
product really well. …As far as I can see, my only limitation would be stacking
cartons of copy paper ….”

[149]     Mr. Wong did
testify that he had some concerns with Mr. Anderson’s continued employment. Mr.
Anderson has difficulty using the cash machine and remains uncomfortable with
it. He also struggles with the computerized inventory system and the on-line
retail application. Mr. Wong noticed that if it has been more than a few days
since Mr. Anderson last used the system, he tends to forget what he had already
learned in operating it. Mr. Anderson is unable to complete “add on” sales,
which requires asking customers if they need related products. For instance, if
someone is buying a binder, you ask if they need paper. Mr. Wong noticed
Mr. Anderson tends to struggle and get frustrated if a customer’s needs
become more complex.

[150]     Mr. Wong attributes
these difficulties to what he perceives to be Mr. Anderson’s “obvious”
lack of confidence; he explained that Mr. Anderson is shy around people and gets
frustrated easily, causing him to make more mistakes.

[151]     Mr. Wong’s
main concern is that Mr. Anderson has not completed important training. Training
modules are made available to employees to be viewed on their own time. Mr.
Wong assumes Mr. Anderson chooses not to finish the modules because he has no
indication that Mr. Anderson finds them difficult. Mr. Anderson could offer no
reason why he was not completing the training.

[152]     Mr. Wong
did say that Mr. Anderson’s strongest quality is his reliability and
willingness to do any task asked of him, no matter how tedious.

[153]     Mr. Wong also
gave evidence about  general changes in the retail market over the last 10
years. Employees are being required to do a greater variety of tasks for the
same amount of pay. So instead of being able to hire staff dedicated to a
particular duty (running the cash register for example), all employees must be
capable of doing that task. Mr. Wong also said that there has been an overall
decrease in the number of employees companies are willing to hire even when
they have not reduced inventory or services.

[154]     This
evidence is important because it describes a changed work place for the type of
jobs Mr. Anderson has sought out and had.

Conclusion – Observed Behavioural Changes

[155]     Mr.
Anderson says he exhibits significant behavioural changes from his pre-Accident
personality, consistent with him having a brain injury.

[156]     I do find some
aspects of Mr. Anderson’s personality have changed since the Accident; he has a
“flat affect” in his facial expression and some decrease in emotionality. I
also find that he gets frustrated more often and more easily and sometimes gets
angry when interrupted or confused.

[157]     I do not
find Mr. Anderson has less motivation than before the Accident. As the
defendant points out, there is evidence of Mr. Anderson having initiative in a manner
incompatible with him having a motivation disorder of any kind. He eagerly
returned to work after the Accident, even though he still had physical
limitations. During that time, he received his best performance evaluation.

[158]     Mr.
Anderson says his return to a familiar job he loved  cannot  be a gauge of his
motivation. I do not agree. Nothing in the evidence suggested that a disorder
of diminished motivation (or Amotivational Syndrome) is selective in its
impact. Thus the fact that Mr. Anderson demonstrated initiative to seek out his
former job and that his performance was equal to or better than before is inconsistent
with him suffering diminished motivation.

[159]     Furthermore,
the fact that he sought a return to work so soon after the Accident contradicts
a finding that he suffers any post-concussive symptoms. The medical evidence
was clear that brain injury symptoms (whether from a concussion or more severe
injuries) are worst immediately following injury and gradually improve with
time (except for permanent injuries which do not improve). This is very
difficult to reconcile with the evidence about Mr. Anderson’s employment after
the Accident.

[160]     Mr.
Anderson says he could not explain why, after The Book Company closed, he did
not actively pursue other employment and that this evidence is consistent with
him suffering from diminished motivation. This is not supported by the medical
evidence.

[161]     If a
psychological impairment produced by a brain injury interfered with his ability
to seek employment more than a year after the Accident, he must have had the
condition (likely more pronounced) immediately after the Accident. Post-concussive
symptoms typically improve over time. I find it improbable that Mr. Anderson
has lower motivation after the Accident when he returned to work at The Book
Company before he was completely physically healed. In my view, it is more
likely that being familiar and comfortable at The Book Company reduced the
negative impact of Mr. Anderson’s underlying anxiety. That comfort and
familiarity disappeared when The Book Company closed. Thus, his anxiety may
have been a significant barrier to Mr. Anderson actively seeking employment.

[162]     Moreover
he did take steps to look for work, albeit not with great persistence. He did
put in some applications and he successfully completed courses offered by the
employment office relating to finding work. One of the courses was two weeks of
full-day classroom instruction. His successful completion of that course is
inconsistent with diminished motivation.

[163]     Another
sign incompatible with him suffering lowered motivation is that after the
Accident he had a habit of spending an hour a day (the maximum time allowed) at
the public library computers engaging in forums or chat rooms about television
shows he enjoyed. This was done without any outside encouragement or
involvement. Also, Mr. Anderson reported to Dr. Ancill that he still
participated in his favourite activities of reading, watching movies and
walking. This too is not consistent with the indicia of low motivation.

[164]     The
defendant says is it simply Mr. Anderson’s nature to have low motivation. She
argues the evidence demonstrates that both before and after the Accident,
Mr. Anderson tends to give up easily when he encounters difficulty, but
that this is not illustrative of a disorder of motivation.

[165]      As an
example, the defendant points out that Mr. Anderson began skipping high school
and eventually quit in part because he found classes too difficult, socially
and academically. Despite being only one credit away, Mr. Anderson has not
completed grade 12. He took courses that would have given him this
qualification but he quit one that he found too difficult and he never enrolled
in another.

[166]     This
evidence is very telling because he is an avid reader; yet, he did not enjoy
the literature course, finding the material uninteresting or too difficult so
he quit. Dr. Wilensky’s testing confirms Mr. Anderson has the intellectual
capacity to do well on a course about literature (his reading and vocabulary
scores were in the average to high range). In my view, this pre-Accident
behaviour is indicative of low motivation.

[167]     Mr. Anderson
says he had difficulty performing tasks he did easily before the Accident at
The Book Company. Mr. Anderson testified he needed “cheat sheets” to remember
some procedures he used to perform (for closing or running the cash register).
In my view, this evidence is more relevant to cognitive deficiencies (which I
found were not diminished after the Accident). It does not demonstrate low
motivation. In fact, it illustrates the opposite; coming up with the idea of
cheat sheets demonstrates self-motivation and initiative to solve a problem.

[168]     Overall I
agree with Dr. Prout’s and Dr. O’Shaughnessy’s analysis. They both testified
that one of the challenges in assessing concussion or post-concussive syndrome
(by which they both meant mild brain injuries) is that the symptoms are
non-specific;  they are not unique (even in combination) to concussion and
could be caused by other conditions. Because Mr. Anderson suffered no loss of
consciousness, no head strike, no post-Accident pain in the head or neck, and
the Accident was not severe, Dr. Prout concludes that Mr. Anderson did not
suffer a concussion. In his view, any behavioural changes would more likely caused
by a decreased ability to mask his anxiety because of his decreased alcohol
intake, although he would defer to a psychiatrist on that conclusion. In fact, Dr. O’Shaughnessy
does reach a similar conclusion, for virtually the same reasons.

[169]     I conclude
that the plaintiff has not proven on a balance of probabilities that he
demonstrates significant behavioural changes (on either a medical or legal
basis) consistent with him having suffered a brain injury from the Accident.

Conclusion 1: Mr. Anderson did not suffer a mild
traumatic brain injury in the Accident

[170]     As noted
above (paragraph 61), Mr. Anderson bears the burden of proving on a balance of
probabilities the Accident was the “cause in fact” and proximate cause of the
Mild Traumatic Brain Injury he claims to have incurred.

[171]     I have
found that on a balance of probabilities, Mr. Anderson has not suffered any
type of brain injury from the Accident. In my view, none of the medical
evidence on brain imaging, medical evidence on brain functioning (including
psychiatric assessments) or evidence about behavioural characteristics proves
on a balance of probabilities that Mr. Anderson has a brain injury. In
addition, the totality of those categories of evidence does not, when
considered together, support a finding that Mr. Anderson has a brain injury, by
any standard.

[172]     Because of
this conclusion, it is unnecessary for me to address issue 2 and I turn to what
damages are payable because of the fractures Mr. Anderson suffered.

DAMAGES

[173]    
Having found Mr. Anderson did not suffer a brain injury, damages are
limited to those arising from the fractures he sustained from the Accident. An
inexhaustive list of factors to consider when assessing damages was articulated
by the Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34:

[46] The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g) impairment of family, marital and social relationships;

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as
a factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[174]     Mr.
Anderson’s injury to his pelvis healed without intervention. He was limited in
bearing weight on his left side for about six to eight weeks after the Accident
and he used crutches and then a cane for a relatively short period of time.

[175]     I find
that the fracture has completely healed. This is supported by Dr. Stone’s
evidence, the Occupational Therapist who testified on behalf of Mr. Anderson
(Gary Worthington-White) and by what Mr. Anderson told Dr. Prout and
Dr. O’Shaughnessy.

[176]     Mr.
Anderson’s clavicle has also completely healed but he occasionally has minor
pain. That pain has not interfered with his ability to be employed on a
full-time basis (at both The Book Company and Staples). I find the evidence
does not prove on a balance of probabilities that this pain will disable him in
the future.

[177]     On April
30, 2008 Dr. Stone recommended Mr. Anderson have the hook plate removed because
it was likely to cause “impingement” pain which Mr. Anderson reported at that
time, and because the plate may irritate his rotator cuff. Mr. Anderson
has not had that surgery despite the recommendation of Dr. Stone and (after a
misunderstanding) his family doctor.

[178]     I find it
is more likely than not that any remaining pain in Mr. Anderson’s shoulder
would be improved, and possibly eliminated, if he followed the advice of
Dr. Stone and had the hook plate removed. I accept as reasonable that
Mr. Anderson was genuinely confused by Dr. Rondeau’s initial advice that
the hook plate removal was not necessary. If any pain remains after that
surgery (should he undergo it), it will most probably be minor and sufficiently
compensated for by the award for general damages.

[179]     Overall, I
find that the injuries to Mr. Anderson’s clavicle and pelvis have completely
healed and, but for a period of time post-Accident, will not limit his ability in
future to work or engage in activities he enjoyed prior to the Accident, with
one caveat. If he does have surgery to remove the hook plate, there is a
possibility that he would be temporarily disabled from working. There was no
evidence to indicate how long such a disability might last, or whether it was
likely to be totally disabling to his shoulder and arm or not. It is probable
he will need physiotherapy to fully recover from that surgery.

Non-Pecuniary Damages

[180]      Counsel
referred me to a number of cases that indicate a range of $50,000 – $85, 000
for somewhat similar set of injuries (Heyes v. Lanphier, 2003 BCSC 1126;
John v. Laundry, 2006 BCSC 1767; Irvine v. Cara Operations Ltd.,
2002 BCSC 1581; Moussa v. Awwad, 2010 BCSC 512; Gravelle (Litigation
guardian of) v. Seageant, 2013 BCSC 536. Counsel for the plaintiff also
referred to a number of cases, but all of those addressed the upper range of
damages appropriate in cases of catastrophic injuries. Those cases are
inapplicable to this case.

[181]     The facts most
relevant to determining a reasonable award in this case is the fact that the
injuries are not permanent and do not have a continuing negative impact on
either employment or enjoyment of life. Nevertheless, Mr. Anderson had to
undergo surgery, and may undergo another one. He was immobile for two weeks and
clearly had physical limitations for about four months after the Accident.
Taking into account all these factors and the case law, I conclude an award of
$65,000.00 is appropriate as non-pecuniary damages for physical injuries.

Wage Loss

[182]     Mr.
Anderson was off work for about a month and a half after the Accident. When he
returned to The Book Company it was part-time for about six weeks and then he
resumed full time work. He is entitled to his lost wages for that period of
time.

[183]     He is not
entitled to any lost wages after The Book Store closed because his lack of
employment after that was unrelated to the Accident.

[184]     The
respondent proposed a past income loss (net of income tax) of $5,000. Mr.
Anderson did not propose an appropriate figure in the event I had found he was
only entitled to wage losses arising from the fractures. The respondent’s
approach and calculations are sound, and I make an award of $5,000 for past
income loss.

In Trust

[185]     Mr.
Anderson says that he is entitled to an award in trust, to the benefit of his
parents, who cared for him for about two months after the Accident. In order to
successfully be awarded a claim in trust, Mr. Anderson must  establish that his
parents’ care was ‘above and beyond’ the usual give and take between family
members, and that the care was necessitated by injuries caused by the Accident:
Dykeman v. Porohowski, 2010 BCCA 36. Mr. Anderson meets this
threshold and an award in trust is appropriate.

[186]      In the
cases cited to me, a range of in trust claims from $3,150 to $57,892.80 was
awarded. The facts of those cases differ to varying degrees from this case. The
defendant has proposed $3,000 as an appropriate in trust award. Mr. Anderson
proposed $30,000. Neither party gave an explanation as to how the figure was
calculated.

[187]     I find the
most relevant facts to Mr. Anderson’s in trust claim are that he was completely
immobilized for two weeks which necessitated his father (at that time in his
70s) to lift Mr. Anderson for personal care. I infer from that that Mr. Anderson
was completely unable for at least two weeks to provide for his own care
(grooming, food, etc.). I also find that when he was with his parents he gradually
improved until he was able to move back to his apartment and live independently
(which coincided approximately to his return to full-time employment). In these
circumstances some additional amount of care is reasonable for a short period
after two weeks.

[188]     Mrs.
Anderson did all Mr. Anderson’s laundry and cooking while he stayed with his
parents. I do find that those tasks are “above and beyond” normal family
dynamics taking into account Mr. Anderson’s age and his mother’s age and an
award is appropriate for that.

[189]      Mr.
Anderson submitted I should include in the in-trust award the fact that he
takes home food from the family Sunday night dinner. I do not find that to be
something “over and above” the normal give and take expected of family members.

[190]     In all
these circumstances, an award of $3,000 is reasonable.

Special Damages

[191]     Mr.
Anderson claims $4,497.33 in special damages. Except for that portion of this
claim relating to vocational services, the defendant does not contest the
claim. The defendant says that the services of a vocational specialist is
unrelated to the Accident. She says Mr. Anderson’s difficulty finding
employment arises from his pre-existing (and untreated) anxiety, alcohol abuse,
limited skill set and lack of both high school diploma and post-secondary
education. This limits Mr. Anderson to low-paying retails jobs, which have become
more demanding in the past 10 years.

[192]     In my
view, it was reasonable for Mr. Anderson to incur the costs of a vocational
specialist. He has asserted that he suffered a brain injury that is either a
direct cause of his difficulty finding employment or a significant contributor
to that difficulty. I base this primarily on the fact that regardless of why
Mr. Anderson was having difficulty finding employment, hiring the vocational
specialist was an attempt to mitigate his damages. It would be unfair to deny him
those costs now.

[193]     Accordingly,
I award Mr. Anderson the full amount of special damages he claims ($4,397.33).

Future Losses

[194]     Mr.
Anderson is entitled to be compensated for any loss he will suffer from the surgery
to remove the hook plate. Dr. Stone estimated that Mr. Anderson would need
approximately 10 physiotherapy sessions to recover from the surgery, and a
figure of $100 per session was proposed. I award $1,000 for the cost of future
physiotherapy sessions.

[195]     Mr.
Anderson would also be entitled to future income loss if the surgery will
disable him from work (whether fully or partially). There was no evidence about
the likelihood of that surgery disabling him, and if so, for how long. Common
sense dictates he will recover more easily and quickly than from the initial
surgery, and that he will not need to miss nearly as much time from work. But
Dr. Stone recognizes he will need physiotherapy so I assume there will be some
level of limitation from his normal work for a short period of time. I award
$500 for that likelihood.

Pre-Judgment Interest

[196]     Mr.
Anderson says the delay in this case from Accident to trial (6 years) justifies
something other than the typical rate of interest in order to put him in the
same position (relying on Bush v. Air Canada, 1992, CanLii 2466
(NSCA) and Scott v. Pettigrew, 1994 CanLii 4348 (NSSC).

[197]     The
defendant says this line of cases has not been adopted in British Columbia and
delay is not a basis for increased pre-judgment interest.

[198]     The
purpose of an award of pre-judgment interest is to compensate the plaintiff for
being held out of money between the date of the injury and the date of the
judgment. To that end, the Supreme Court table for interest rates found on its
web-site is reasonable.

[199]     Even if
the delay was a basis upon which I could increase the rate of interest, I would
need to be persuaded that the delay in this case was atypical and not caused
merely by the normal operating timelines in the Supreme Court. That evidence
was not put before me.

[200]     Accordingly,
I see no reason to depart from the interest rates provided in the “Court Order
Interest Rates” available on the Supreme Court’s website.

“Sharma
J.”